In these terms and conditions:
a) “Company” means MDL Scientific Pty Ltd. ACN 617 498 263, which is the seller of the products or services.
b) “Principal” means the manufacturer, in whole, or in part, of the goods supplied to the Purchaser by the Company pursuant to these terms and conditions and any agreement incorporating the terms and conditions.
c) `you, your, Purchaser’ means the buyer, the client or customer of the Company in any agreement to which these terms and conditions are annexed or incorporated.
d) Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Trade Practices Act 1974) and which by law cannot be excluded, restricted or modified.
a) Subject to Clause 18, payment is strictly due within 30 days from the date of invoice.
b) By placing any order with the Company for good or services you indicate acceptance and incorporation of our terms and conditions of sale.
c) The goods and all other products and services sold or provided by the Company are sold or provided on these terms and conditions. These are the only terms and conditions which are binding upon the Company with the exception of those otherwise agreed in writing by the Company or which are imposed by a statute and which cannot be excluded.
d) The Purchaser acknowledges that he has relied solely upon his own inspection and skill and judgement and not by reason of any representation by the Company.
e) In the absence of a written order from the Purchaser, the Company’s internal order will constitute the basis of the agreement.
3. Acceptance of Contract or Order
a) We reserve the right not to accept your order, in which case we will not have any further obligation to you.
b) Subject to cl 2 (c) above, any contract or order based on this or any other tender or quotation is only accepted upon and subject to the Company’s terms and conditions.
c) No order given to the Company based upon a quotation shall be binding upon the Company until accepted by the Company in writing.
d) The Company reserves the right to correct any accidental error or omission or quotation or invoice without prior notice.
4. Acceptance of goods
The Purchaser shall inspect the goods immediately on the arrival thereof and shall within 7 days from such inspection give notice in writing to the Company of any matter or thing by reason whereof he may allege that the goods are not in accordance with the contract. If the Purchaser shall fail to give such notice the goods shall be deemed to be in all respects in accordance with the contract and the Purchaser shall be bound to accept and pay for the same accordingly.
5. Standing Orders & Contracts
Any Standing Orders and other contracts that have been made with the Company are binding for a period 12 month period and can only be unilaterally cancelled by the Company issuing 60 days prior notice.
a) Unless otherwise stated all prices quoted by Company are net, inclusive of Goods and Services Tax (10% GST) and the Purchaser agrees to pay to the Company any GST in addition to the price. Freight/Shipping charges are also considered to be in addition to the price.
b) Prices for goods to be imported are based on prices quoted to the Company by the Principal and the rates of freight, Insurance premiums, customs duties, primage and other costs of importation known to the Company at the time of the quotation (Related Costs). In the event of any increase in Related Costs or in the prices of the goods quoted to the Company by the Principal before acceptance of an order or prior to the delivery of the goods to the Purchaser then the cost to the Company entailed by such increase/s shall be
added to and form part of the purchase and or repair price and be payable by the Purchaser accordingly. Conversely any decrease in any such rates or the Principal’s price shall be deducted from the purchase and or repair price. This provision for variation of price shall also apply to goods and services required for the execution of an order purchased and obtained locally.
c) If the Company makes any alterations to the price of the goods or to any of their inputs either before acceptance of or during the currency of the contract, these alterations are for the Company’s account.
7. Currency Fluctuation
Where goods are imported into Australia, any adverse variation in the price arising from fluctuation in exchange rates between the date of the Purchaser’s order and the date of payment by the relevant Company will be to the Purchaser’s account.
8. Goods ex stock
Goods quoted ex stock are subject to prior sale by the Company unless it is otherwise stated in the quotation.
9. Availability of goods
The Company shall have no liability direct or indirect for the delay in delivery. The delivery time for the goods quoted on an indent basis is an estimate only and is based upon the Company’s knowledge of conditions prevailing at the time the quotation is made. The delivery time is subject to variation in accordance with the Principal’s manufacturing programme and the availability of shipping space from the source of supply and also to any delay through Act of God, labour disputes, strikes, lockouts, fire, accident, non-delivery of parts by other manufacturers or any other causes or contingencies beyond the Company’s control and/or the control of the Principals. The Company does not accept orders under penalty for late
In the case of delivery or part thereof each and every delivery will be deemed to be sold under a separate contract and will be subject to these terms and conditions.
In addition to any lien to which the Company may be entitled by statute or common law the Company shall, in the event of the Purchaser’s insolvency, bankruptcy or winding up, be thereupon entitled to a general lien on all property whatsoever owned by the Purchaser but in the Company’s possession at the time, such lien to cover the unpaid price of any goods (including the goods) sold by the Company to the Purchaser.
12. Return of Goods
Returns may be made with prior written consent of the Company and may not be accepted after seven days from the date of the Company’s invoice. Freight costs on goods being forwarded to the Company will be borne by the Purchaser. A restocking fee may be charged.
Where goods were originally supplied in a special Principal’s or Company’s carton, any return shall be made in that original carton and the goods shall be in their original and unmarked condition, complete with any instruction sheets supplied.
b) Goods not returnable:
The following goods cannot be returned for credit under any conditions:-
(i) Any goods specially made, including items cut to length.
(ii) Any goods made, or purchased to a firm and irrevocable order.
(iii) Any goods altered or damaged by the Purchaser.
(iv) Any goods having an invoice value of ten dollars or less.
(v) Any goods especially indented and which are not normal stocklines.
a) The Company makes no express warranties under these terms and conditions except that to the extent that the goods supplied are covered by the manufacturer’s warranty, the Company will pass on to the Purchaser the benefit of the manufacturer’s warranty.
b) Upon discovery of any defect in the goods supplied by the Company the Purchaser shall immediately notify that Company in writing. The Purchaser shall not carry out any remedial work to allegedly defective goods without first obtaining the written consent of that Company to do so.
c) The Company does not exclude or limit application of any provision of any statute (including the Trade Practices Act (Cth)) where to do so would contravene that statute or cause any part of this clause to be void.
d) The Company excludes all conditions, warranties and terms, whether expressed or implied by law or otherwise in respect of the goods which may apart from this clause be binding upon the Company, except any implied conditions and warranties the exclusion of which would contravene any statute or cause this clause to be void.
e) To the extent permitted by statute, the liability, if any, of the Company arising from the breach of any implied conditions or warranties in relation to the supply of goods other than goods of a kind ordinarily acquired for personal, domestic or household use or consumption, shall at the Company’s option be limited to:
(i) the replacement of the goods or resupply of the goods by the Company;
(ii) the repair of the goods.
f) The Company excludes all liability to the Purchaser in negligence for acts or omissions of the Company, its employees, agents and contractors and all liability to the Purchaser in contract for consequential or indirect loss or damages, arising out of or in connection with this Agreement.
g) The Purchaser expressly acknowledges and agrees that it has not relied upon, any advice given by the Company, its agents or employees in relation to the suitability for any purpose of goods or materials supplied by the Company.
h) To the extent permitted by statute, all warranties (whether express or implied, and whether given by the Company, the manufacturer or a third party) and any obligation of the Company to repair or replace any goods are void in respect of any goods which the Purchaser tampers with or alters.
i) Subject to the above, in all other respects the Company’s liability in respect to all goods or services sold or provided by the Company is excluded to the full extent permitted by Australian law and legislation.
Failure by the Company to insist upon strict performance by the Purchaser of any of the terms or conditions shall not be taken to be a waiver of any rights of the Company in relation to these terms and conditions and in any event shall not be taken to be a waiver of the same terms and conditions on any subsequent occasion.
15. Descriptive and Illustrative Literature
Illustrative and descriptive literature supplied by the Company to the Purchaser represents generally the products or services specified but may not comply in all respects with the goods or services which are subject of this quotation, tender or invoice.
16. Installations and Commissioning
All equipment shall be installed and commissioned by and at the expense of the Purchaser unless agreed to in writing or otherwise stated in the Company’s quotation, tender or invoice. In the case of equipment which the Company or the Principal undertakes to install, it is the Purchaser’s responsibility to provide all service utilities required, e.g. electric power outlets, water outlets, drains, compressed air lines, etc. If special handling equipment is required such as heavy lift gear for movement of equipment at the installation site the cost of hiring or using such equipment and any associated charges will be additional for the Purchaser’s account. Installation will be made at the time of delivery or as soon as practicable thereafter and the special handling equipment will be at the Purchaser’s risk. Unless otherwise agreed the Company’s responsibility to install such equipment may cease if the installation is deferred by the Purchaser for an indefinite period.
a) No order may be cancelled except with consent in writing and on terms which will indemnify the Company against all losses or with the Company’s consent upon the payment of a cancellation fee of 15 % of the price including GST for the cost of restocking plus related expenses.
b) Filing a petition of bankruptcy or commencement of any legal action for insolvency, or creditor’s petition for winding-up of the Purchaser’s company shall be deemed a cancellation by the Purchaser.
18. Terms of Payment/Retention of Title
Where credit terms have been agreed, invoices are Strictly Net 30 days from the date of invoice. Terms of Payment may be varied at the discretion of the Company and will be outlined on the quotation. The property of the goods shall not pass to the Purchaser until the goods are paid for in full. In the event of non-compliance with the these terms and conditions, the Company reserves the right to suspend deliveries and/or cancel contracts and/or apply a service fee at the rate of 2.5% per month on all outstanding monies from the due date and/or void warranty. Where credit terms have not been agreed upon, the Company will require a cheque with the order or prepayment by direct into the bank account nominated in writing by the Company.
19. Injury and Damage
The Purchaser shall indemnify the Company against all claims whether made under any contract or statute or under common law in respect to any loss or damage to any property whatsoever arising out of any defect in material or workmanship in connection with any goods manufactured and/or sold by the Company or any default or negligence on the part of the Company’s personnel in connection with or during the carrying out of any work by the Company on the Purchaser’s or any other person’s property.
20. Risk and dispatch
Unless otherwise specified by the Company the point of delivery of the good shall be at the Company’s premises and other such sites. Goods delivered elsewhere shall at the Purchaser’s risk from dispatch to such premises and the Purchaser will indemnify the Company against any claim or liability damage or injury to or by the goods after dispatch and shall specify in writing on his official order if insurance is to be taken out on his behalf and at his cost. This provision will apply notwithstanding the fact that the Company has agreed to install the goods at the premises nominated by the Purchaser.
21. Governing Law
These terms and conditions and any contract including them shall be governed by and construed in accordance with the laws of the State of Queensland and both you and the Company submit to the non-exclusive jurisdiction of the Courts of Queensland.
22. Validity of Quotation
Quotations are valid for 30 days unless otherwise stated.
The Purchaser shall not assign the contract or any right thereunder without the written consent of the Company.
24. Force Majeure
If the performance or observance of any obligations of the Company is prevented, restricted or affected by reason of a force majeure event including strike, lock out, industrial dispute, raw material shortage, breakdown of plant, transport or equipment or any other cause beyond the reasonable control of the Company, the Company may, in its absolute discretion give prompt notice of that cause to you. On delivery of that notice the Company is excused from such performance or observance to the extent of the relevant prevention, restriction or effect.